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Contents: Chapter Two--Constitutional Limitations on the Definition and Punishment of Criminal Offenses Grayned v. City of RockfordAuthor's Note--Corrections to page 73 Lawrence v. Texas Goss v. Lopez People v. Carl Malchow Connecticut Department of Public Safety v. John Doe Justice Kennedy's Concurring Opinion in Harmelin People v. Bullock Atkins v. Virginia |
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The following case is associated
with Webnote A on page 38 Grayned
v. City of Rockford
I
At the time of
appellant's arrest and conviction, Rockford's antipicketing ordinance provided
that "(i)
Pickets or demonstrates on a public way within 150 feet of any primary
or secondary school building while the school is in session and one-half
hour before the school is in session and one-half hour after the school
session has been concluded, provided that this subsection does not prohibit
the peaceful picketing of any school involved in a labor dispute ...."
Code of Ordinances, c. 28, § 18.1 (i). This ordinance is
identical to the Chicago disorderly conduct ordinance we have today considered
in Police Department of Chicago v. Mosley, ante, p. 92. For
the reasons given in Mosley, we agree with dissenting Justice Schaefer
below, and hold that § 18.1 (i) violates the Equal Protection Clause
of the Fourteenth Amendment. Appellant's conviction under this invalid
ordinance must be reversed....
II
The antinoise
ordinance reads, in pertinent part, as follows: A. Vagueness Although the question
is close, we conclude that the antinoise ordinance is not impermissibly
vague. The court below rejected appellant's arguments "that proscribed
conduct was not sufficiently specified and that police were given too broad
a discretion in determining whether conduct was proscribed." 46 Ill. 2d,
at 494, 263 N. E. 2d, at 867. Although it referred to other, similar statutes
it had recently construed and upheld, the court below did not elaborate
on the meaning of the antinoise ordinance.... In this situation, as Mr. Justice
Frankfurter put it, we must "extrapolate its allowable meaning." ... Here,
we are "relegated ... to the words of the ordinance itself," ... to the
interpretations the court below has given to analogous statutes... and,
perhaps to some degree, to the interpretation of the statute given by those
charged with enforcing it.... "Extrapolation," of course, is a delicate
task, for it is not within our power to construe and narrow state laws.... Cox v. Louisiana,
379 U.S. 536 (1965), and Coates v. Cincinnati, 402 U.S. 611 (1971),
on which appellant particularly relies, presented completely different
situations. In Cox, a general breach of the peace ordinance had
been construed by state courts to mean, "to agitate, to arouse from a state
of repose, to molest, to interrupt, to hinder, to disquiet." The Court
correctly concluded that, as construed, the ordinance permitted persons
to be punished for merely expressing unpopular views.... In Coates,
the ordinance punished the sidewalk assembly of three or more persons who
"conduct themselves in a manner annoying to persons passing by ..." We held,
in part, that the ordinance was impermissibly vague because enforcement
depended on the completely subjective standard of "annoyance." B. Overbreadth A clear and precise enactment may nevertheless be "overbroad" if in its reach it prohibits constitutionally protected conduct.... Although appellant does not claim that, as applied to him, the antinoise ordinance has punished protected expressive activity, he claims that the ordinance is overbroad on its face. Because overbroad laws, like vague ones, deter privileged activity, our cases firmly establish appellant's standing to raise an overbreadth challenge.... The crucial question, then, is whether the ordinance sweeps within its prohibitions what may not be punished under the First and Fourteenth Amendments. Specifically, appellant contends that the Rockford ordinance unduly interferes with First and Fourteenth Amendment rights to picket on a public sidewalk near a school. We disagree. In considering the
right of a municipality to control the use of public streets for the expression
of religious [or political] views, we start with the words of Mr. Justice
Roberts that 'Wherever the title of streets and parks may rest, they
have immemorially been held in trust for the use of the public and, time
out of mind, have been used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions.' Hague v.
CIO, 307 U.S. 496, 515 (1939)." Kunz v. New York, 340 U.S.
290, 293 (1951). See Shuttlesworth v. Birmingham, 394 U.S. 147,
152 (1969). The right to use a public place for expressive activity may
be restricted only for weighty reasons. "Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied." |
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Two of the chapter
two website note descriptions on page 73, website notes "B" and "C" were
mistakenly inverted such that the text of "B" relates to "C" and visa versa.
The cases referred to below, however, are correctly linked to the text pages
as indicated. Back to Top |
|
The following case is associated with Webnote
B on page 46. Lawrence
v. Texas
No. 02-102 U.S. Supreme Court Decided June 26, 2003 Justice Kennedy
delivered the opinion of the Court.
Liberty protects the person from unwarranted government intrusions into
a dwelling or other private places. In our tradition the State is not
omnipresent in the home. And there are other spheres of our lives and existence,
outside the home, where the State should not be a dominant presence. Freedom
extends beyond spatial bounds. Liberty presumes an autonomy of self that
includes freedom of thought, belief, expression, and certain intimate
conduct. The instant case involves liberty of the person both in its spatial
and more transcendent dimensions.
I
The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct. In Houston, Texas,
officers of the Harris County Police Department were dispatched to a private
residence in response to a reported weapons disturbance. They entered
an apartment where one of the petitioners, John Geddes Lawrence, resided.
The right of the police to enter does not seem to have been questioned.
The officers observed Lawrence and another man, Tyron Garner, engaging in
a sexual act. The two petitioners were arrested, held in custody over night,
and charged and convicted before a Justice of the Peace. The complaints described their crime as "deviate sexual intercourse, namely anal sex, with a member of the same sex (man)." App. to Pet. for Cert. 127a, 139a. The applicable state law is Tex. Penal Code Ann. §21.06(a) (2003). It provides: "A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex." The statute defines "[d]eviate sexual intercourse" as follows:
The petitioners exercised
their right to a trial de novo in Harris County Criminal Court.
They challenged the statute as a violation of the Equal Protection Clause
of the Fourteenth Amendment and of a like provision of the Texas Constitution.
Tex. Const., Art. 1, §3a. Those contentions were rejected. The petitioners,
having entered a plea of nolo contendere, were each fined $200
and assessed court costs of $141.25. App. to Pet. for Cert. 107a-110a. The Court of Appeals
for the Texas Fourteenth District considered the petitioners' federal
constitutional arguments under both the Equal Protection and Due Process
Clauses of the Fourteenth Amendment. After hearing the case en banc the
court, in a divided opinion, rejected the constitutional arguments and affirmed
the convictions. 41 S. W. 3d 349 (Tex. App. 2001). The majority opinion
indicates that the Court of Appeals considered our decision in Bowers
v. Hardwick, 478 U. S. 186 (1986), to be controlling on the federal
due process aspect of the case. Bowers then being authoritative,
this was proper. We granted certiorari,
537 U. S. 1044 (2002), to consider three questions:
The petitioners
were adults at the time of the alleged offense. Their conduct was in private
and consensual.
II
We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court's holding in Bowers. There are broad statements
of the substantive reach of liberty under the Due Process Clause in
earlier cases, including Pierce v. Society of Sisters, 268 U.
S. 510 (1925), and Meyer v. Nebraska, 262 U. S. 390 (1923); but
the most pertinent beginning point is our decision in Griswold v.
Connecticut, 381 U. S. 479 (1965). In Griswold
the Court invalidated a state law prohibiting the use of drugs or devices
of contraception and counseling or aiding and abetting the use of contraceptives.
The Court described the protected interest as a right to privacy and placed
emphasis on the marriage relation and the protected space of the marital
bedroom. Id., at 485. After Griswold
it was established that the right to make certain decisions regarding sexual
conduct extends beyond the marital relationship. In Eisenstadt v.
Baird, 405 U. S. 438 (1972), the Court invalidated a law prohibiting
the distribution of contraceptives to unmarried persons. The case was
decided under the Equal Protection Clause, id., at 454; but with
respect to unmarried persons, the Court went on to state the fundamental
proposition that the law impaired the exercise of their personal rights,
ibid. It quoted from the statement of the Court of Appeals
finding the law to be in conflict with fundamental human rights, and it
followed with this statement of its own:
The opinions in Griswold
and Eisenstadt were part of the background for the decision in Roe
v. Wade, 410 U. S. 113 (1973). As is well known, the case involved
a challenge to the Texas law prohibiting abortions, but the laws of other
States were affected as well. Although the Court held the woman's rights
were not absolute, her right to elect an abortion did have real and substantial
protection as an exercise of her liberty under the Due Process Clause.
The Court cited cases that protect spatial freedom and cases that go
well beyond it. Roe recognized the right of a woman to make certain
fundamental decisions affecting her destiny and confirmed once more that
the protection of liberty under the Due Process Clause has a substantive
dimension of fundamental significance in defining the rights of the person. In Carey v. Population
Services Int'l, 431 U. S. 678 (1977), the Court confronted a New
York law forbidding sale or distribution of contraceptive devices to
persons under 16 years of age. Although there was no single opinion for
the Court, the law was invalidated. Both Eisenstadt and Carey,
as well as the holding and rationale in Roe, confirmed that the
reasoning of Griswold could not be confined to the protection
of rights of married adults. This was the state of the law with respect
to some of the most relevant cases when the Court considered Bowers v.
Hardwick. The facts in Bowers
had some similarities to the instant case. A police officer, whose right
to enter seems not to have been in question, observed Hardwick, in his
own bedroom, engaging in intimate sexual conduct with another adult male.
The conduct was in violation of a Georgia statute making it a criminal
offense to engage in sodomy. One difference between the two cases is that
the Georgia statute prohibited the conduct whether or not the participants
were of the same sex, while the Texas statute, as we have seen, applies
only to participants of the same sex. Hardwick was not prosecuted, but
he brought an action in federal court to declare the state statute invalid.
He alleged he was a practicing homosexual and that the criminal prohibition
violated rights guaranteed to him by the Constitution. The Court, in an
opinion by Justice White, sustained the Georgia law. Chief Justice Burger
and Justice Powell joined the opinion of the Court and filed separate, concurring
opinions. Four Justices dissented. 478 U. S., at 199 (opinion of Blackmun,
J., joined by Brennan, Marshall, and Stevens, JJ.); id., at
214 (opinion of Stevens, J., joined by Brennan and Marshall, JJ.). The Court began its substantive discussion in Bowers as follows: "The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time." Id., at 190. That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice. Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: "Proscriptions against that conduct have ancient roots." Id., at 192. In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions in Bowers. Brief for Cato Institute as Amicus Curiae 16-17; Brief for American Civil Liberties Union et al. as Amici Curiae 15-21; Brief for Professors of History et al. as Amici Curiae 3-10. We need not enter this debate in the attempt to reach a definitive historical judgment, but the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance. At the outset it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the Reformation Parliament of 1533. The English prohibition was understood to include relations between men and women as well as relations between men and men. See, e.g., King v. Wiseman, 92 Eng. Rep. 774, 775 (K. B. 1718) (interpreting "mankind" in Act of 1533 as including women and girls). Nineteenth-century commentators similarly read American sodomy, buggery, and crime-against-nature statutes as criminalizing certain relations between men and women and between men and men. See, e.g., 2 J. Bishop, Criminal Law §1028 (1858); 2 J. Chitty, Criminal Law 47-50 (5th Am. ed. 1847); R. Desty, A Compendium of American Criminal Law 143 (1882); J. May, The Law of Crimes §203 (2d ed. 1893). The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century. See, e.g., J. Katz, The Invention of Heterosexuality 10 (1995); J. D'Emilio & E. Freedman, Intimate Matters: A History of Sexuality in America 121 (2d ed. 1997) ("The modern terms homosexuality and heterosexuality do not apply to an era that had not yet articulated these distinctions"). Thus early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally. This does not suggest approval of homosexual conduct. It does tend to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons. Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault. As to these, one purpose for the prohibitions was to ensure there would be no lack of coverage if a predator committed a sexual assault that did not constitute rape as defined by the criminal law. Thus the model sodomy indictments presented in a 19th-century treatise, see 2 Chitty, supra, at 49, addressed the predatory acts of an adult man against a minor girl or minor boy. Instead of targeting relations between consenting adults in private, 19th-century sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between adults involving force, relations between adults implicating disparity in status, or relations between men and animals. To the extent that there were any prosecutions for the acts in question, 19th-century evidence rules imposed a burden that would make a conviction more difficult to obtain even taking into account the problems always inherent in prosecuting consensual acts committed in private. Under then-prevailing standards, a man could not be convicted of sodomy based upon testimony of a consenting partner, because the partner was considered an accomplice. A partner's testimony, however, was admissible if he or she had not consented to the act or was a minor, and therefore incapable of consent. See, e.g., F. Wharton, Criminal Law 443 (2d ed. 1852); 1 F. Wharton, Criminal Law 512 (8th ed. 1880). The rule may explain in part the infrequency of these prosecutions. In all events that infrequency makes it difficult to say that society approved of a rigorous and systematic punishment of the consensual acts committed in private and by adults. The longstanding criminal prohibition of homosexual sodomy upon which the Bowers decision placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character. The policy of punishing consenting adults for private acts was not much discussed in the early legal literature. We can infer that one reason for this was the very private nature of the conduct. Despite the absence of prosecutions, there may have been periods in which there was public criticism of homosexuals as such and an insistence that the criminal laws be enforced to discourage their practices. But far from possessing "ancient roots," Bowers, 478 U. S., at 192, American laws targeting same-sex couples did not develop until the last third of the 20th century. The reported decisions concerning the prosecution of consensual, homosexual sodomy between adults for the years 1880-1995 are not always clear in the details, but a significant number involved conduct in a public place. See Brief for American Civil Liberties Union et al. as Amici Curiae 14-15, and n. 18. It was not until the 1970s that any State singled out same-sex relations for criminal prosecution, and only nine States have done so. See 1977 Ark. Gen. Acts no. 828; 1983 Kan. Sess. Laws p. 652; 1974 Ky. Acts p. 847; 1977 Mo. Laws p. 687; 1973 Mont. Laws p. 1339; 1977 Nev. Stats. p. 1632; 1989 Tenn. Pub. Acts ch. 591; 1973 Tex. Gen. Laws ch. 399; see also Post v. State, 715 P. 2d 1105 (Okla. Crim. App. 1986) (sodomy law invalidated as applied to different-sex couples). Post-Bowers even some of these States did not adhere to the policy of suppressing homosexual conduct. Over the course of the last decades, States with same-sex prohibitions have moved toward abolishing them. See, e.g., Jegley v. Picado, 349 Ark. 600, 80 S. W. 3d 332 (2002); Gryczan v. State, 283 Mont. 433, 942 P. 2d 112 (1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, 842 S. W. 2d 487 (Ky. 1992); see also 1993 Nev. Stats. p. 518 (repealing Nev. Rev. Stat. §201.193). In summary, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated. It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. "Our obligation is to define the liberty of all, not to mandate our own moral code." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850 (1992). Chief Justice Burger joined the opinion for the Court in Bowers and further explained his views as follows: "Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards." 478 U. S., at 196. As with Justice White's assumptions about history, scholarship casts some doubt on the sweeping nature of the statement by Chief Justice Burger as it pertains to private homosexual conduct between consenting adults. See, e.g., Eskridge, Hardwick and Historiography, 1999 U. Ill. L. Rev. 631, 656. In all events we think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. "[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry." County of Sacramento v. Lewis, 523 U. S. 833, 857 (1998) (Kennedy, J., concurring). This emerging recognition should have been apparent when Bowers was decided. In 1955 the American Law Institute promulgated the Model Penal Code and made clear that it did not recommend or provide for "criminal penalties for consensual sexual relations conducted in private." ALI, Model Penal Code §213.2, Comment 2, p. 372 (1980). It justified its decision on three grounds: (1) The prohibitions undermined respect for the law by penalizing conduct many people engaged in; (2) the statutes regulated private conduct not harmful to others; and (3) the laws were arbitrarily enforced and thus invited the danger of blackmail. ALI, Model Penal Code, Commentary 277-280 (Tent. Draft No. 4, 1955). In 1961 Illinois changed its laws to conform to the Model Penal Code. Other States soon followed. Brief for Cato Institute as Amicus Curiae 15-16. In Bowers the Court referred to the fact that before 1961 all 50 States had outlawed sodomy, and that at the time of the Court's decision 24 States and the District of Columbia had sodomy laws. 478 U. S., at 192-193. Justice Powell pointed out that these prohibitions often were being ignored, however. Georgia, for instance, had not sought to enforce its law for decades. Id., at 197-198, n. 2 ("The history of nonenforcement suggests the moribund character today of laws criminalizing this type of private, consensual conduct"). The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction. A committee advising the British Parliament recommended in 1957 repeal of laws punishing homosexual conduct. The Wolfenden Report: Report of the Committee on Homosexual Offenses and Prostitution (1963). Parliament enacted the substance of those recommendations 10 years later. Sexual Offences Act 1967, §1. Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today's case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) ¶ ;52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization. In our own constitutional system the deficiencies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances. State v. Morales, 869 S. W. 2d 941, 943. Two principal cases decided after Bowers cast its holding into even more doubt. In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:
Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right. The second post-Bowers case of principal relevance is Romer v. Evans, 517 U. S. 620 (1996). There the Court struck down class-based legislation directed at homosexuals as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado's constitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by "orientation, conduct, practices or relationships," id., at 624 (internal quotation marks omitted), and deprived them of protection under state antidiscrimination laws. We concluded that the provision was "born of animosity toward the class of persons affected" and further that it had no rational relation to a legitimate governmental purpose. Id., at 634. As an alternative argument in this case, counsel for the petitioners and some amici contend that Romer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause. That is a tenable argument, but we conclude the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants. Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons. The stigma this criminal statute imposes, moreover, is not trivial. The offense, to be sure, is but a class C misdemeanor, a minor offense in the Texas legal system. Still, it remains a criminal offense with all that imports for the dignity of the persons charged. The petitioners will bear on their record the history of their criminal convictions. Just this Term we rejected various challenges to state laws requiring the registration of sex offenders. Smith v. Doe, 538 U. S. __ (2003); Connecticut Dept. of Public Safety v. Doe, 538 U. S. 1 (2003). We are advised that if Texas convicted an adult for private, consensual homosexual conduct under the statute here in question the convicted person would come within the registration laws of a least four States were he or she to be subject to their jurisdiction. Pet. for Cert. 13, and n. 12 (citing Idaho Code §§18-8301 to 18-8326 (Cum. Supp. 2002); La. Code Crim. Proc. Ann., §§15:540-15:549 (West 2003); Miss. Code Ann. §§45-33-21 to 45-33-57 (Lexis 2003); S. C. Code Ann. §§23-3-400 to 23-3-490 (West 2002)). This underscores the consequential nature of the punishment and the state-sponsored condemnation attendant to the criminal prohibition. Furthermore, the Texas criminal conviction carries with it the other collateral consequences always following a conviction, such as notations on job application forms, to mention but one example. The foundations of Bowers have sustained serious erosion from our recent decisions in Casey and Romer. When our precedent has been thus weakened, criticism from other sources is of greater significance. In the United States criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. See, e.g., C. Fried, Order and Law: Arguing the Reagan Revolution--A Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-350 (1992). The courts of five different States have declined to follow it in interpreting provisions in their own state constitutions parallel to the Due Process Clause of the Fourteenth Amendment, see Jegley v. Picado, 349 Ark. 600, 80 S. W. 3d 332 (2002); Powell v. State, 270 Ga. 327, 510 S. E. 2d 18, 24 (1998); Gryczan v. State, 283 Mont. 433, 942 P. 2d 112 (1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, 842 S. W. 2d 487 (Ky. 1992). To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. See P. G. & J. H. v. United Kingdom, App. No. 00044787/98, ¶ ;56 (Eur. Ct. H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H. R. (1993); Norris v. Ireland, 142 Eur. Ct. H. R. (1988). Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. See Brief for Mary Robinson et al. as Amici Curiae 11-12. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent. The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. Payne v. Tennessee, 501 U. S. 808, 828 (1991) ("Stare decisis is not an inexorable command; rather, it 'is a principle of policy and not a mechanical formula of adherence to the latest decision'") (quoting Helvering v. Hallock, 309 U. S. 106, 119 (1940))). In Casey we noted that when a Court is asked to overrule a precedent recognizing a constitutional liberty interest, individual or societal reliance on the existence of that liberty cautions with particular strength against reversing course. 505 U. S., at 855-856; see also id., at 844 ("Liberty finds no refuge in a jurisprudence of doubt"). The holding in Bowers, however, has not induced detrimental reliance comparable to some instances where recognized individual rights are involved. Indeed, there has been no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding once there are compelling reasons to do so. Bowers itself causes uncertainty, for the precedents before and after its issuance contradict its central holding. The rationale of
Bowers does not withstand careful analysis. In his dissenting
opinion in Bowers Justice Stevens came to these conclusions:
Justice Stevens' analysis, in our view, should have been controlling in Bowers and should control here. Bowers was
not correct when it was decided, and it is not correct today. It ought
not to remain binding precedent. Bowers v. Hardwick should be and
now is overruled. The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. The judgment of the
Court of Appeals for the Texas Fourteenth District is reversed, and the
case is remanded for further proceedings not inconsistent with this opinion. It is so ordered |
|
The following case is associated with Webnote C on
page 46. Goss
v. Lopez
419 U.S. 565 U.S. Supreme Court January 22, 1975 MR. JUSTICE WHITE
delivered the opinion of the Court.
I
Ohio law, Rev. Code
Ann. § 3313.64 (1972), provides for free education to all children
between the ages of six and 21. Section 3313.66 of the Code empowers the
principal of an Ohio public school to suspend a pupil for misconduct
for up to 10 days or to expel him. In either case, he must notify the student's
parents within 24 hours and state the reasons for his action. A pupil
who is expelled, or his parents, may appeal the decision to the Board
of Education and in connection therewith shall be permitted to be heard
at the board meeting. The Board may reinstate the pupil following the hearing.
No similar procedure is provided in § 3313.66 or any other provision
of state law for a suspended student. Aside from a regulation tracking the
statute, at the time of the imposition of the suspensions in this case the
CPSS itself had not issued any written procedure applicable to suspensions....
Nor, so far as the record reflects, had any of the individual high schools
involved in this case.... Each, however, had formally or informally described
the conduct for which suspension could be imposed.
II
At the outset, appellants
contend that because there is no constitutional right to an education at
public expense, the Due Process Clause does not protect against expulsions
from the public school system. This position misconceives the nature of
the issue and is refuted by prior decisions. The Fourteenth Amendment forbids
the State to deprive any person of life, liberty, or property without due
process of law. Protected interests in property are normally "not created
by the Constitution. Rather, they are created and their dimensions are
defined" by an independent source such as state statutes or rules entitling
the citizen to certain benefits..... The Due Process Clause
also forbids arbitrary deprivations of liberty. "Where a person's good
name, reputation, honor, or integrity is at stake because of what the government
is doing to him," the minimal requirements of the Clause must be satisfied.
Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971); Board
of Regents v. Roth, supra, at 573. School authorities here suspended
appellees from school for periods of up to 10 days based on charges of misconduct.
If sustained and recorded, those charges could seriously damage
the students' standing with their fellow pupils and their teachers as
well as interfere with later opportunities for higher education and employment.....
It is apparent that the claimed right of the State to determine unilaterally
and without process whether that misconduct has occurred immediately collides
with the requirements of the Constitution.....
III
.... At the very
minimum, therefore, students facing suspension and the consequent interference
with a protected property interest must be given some kind of notice and
afforded some kind of hearing. "Parties whose rights are to be affected
are entitled to be heard; and in order that they may enjoy that right they
must first be notified."...
IV
The District Court
found each of the suspensions involved here to have occurred without a
hearing, either before or after the suspension, and that each suspension
was therefore invalid and the statute unconstitutional insofar as it permits
such suspensions without notice or hearing. Accordingly, the judgment is
Affirmed. |
|
The following two cases are associated
with Webnote D on page 53. People
v. Carl Malchow
739 N.E.2d 433 Illinois Supreme Court September 21, 2000 JUSTICE RATHJE delivered
the opinion of the court: Defendant has failed
to meet his substantial burden of demonstrating that the provisions of
Public Act 89-8 bear no natural or logical connection to a single subject. On appeal, defendant
argued that the Registration Act is unconstitutional because, inter
alia: (1) it violates the ex post facto clauses of the United
States and Illinois Constitutions (U.S. Const., art. I, §§ 10,
cl. 1; Ill. Const. 1970, art. I, §§ 16); and (2) it subjects
defendant to double jeopardy in violation of the United States and Illinois
Constitutions (U.S. Const., amend. V; Ill. Const. 1970, art. I, §§
10). The appellate court rejected defendant's arguments and affirmed
defendant's conviction. 306 Ill. App. 3d 665. The majority today affirms
the appellate court. |
|
Connecticut Department of Public Safety
v. John Doe
U.S. Supreme Court No. 01-1231 March 5, 2003 Chief
Justice Rehnquist delivered the opinion of the Court.
We granted certiorari to determine whether the United States Court of Appeals for the Second Circuit properly enjoined the public disclosure of Connecticut's sex offender registry. The Court of Appeals concluded that such disclosure both deprived registered sex offenders of a "liberty interest," and violated the Due Process Clause because officials did not afford registrants a predeprivation hearing to determine whether they are likely to be "currently dangerous." Doe v. Department of Public Safety ex rel. Lee, 271 F.3d 38, 44, 46 (2001). Connecticut, however, has decided that the registry requirement shall be based on the fact of previous conviction, not the fact of current dangerousness. Indeed, the public registry explicitly states that officials have not determined that any registrant is currently dangerous. We therefore reverse the judgment of the Court of Appeals because due process does not require the opportunity to prove a fact that is not material to the State's statutory scheme. "Sex offenders are a serious threat in this Nation." McKune v. Lile, 536 U.S. 24, 32 (2002) (plurality opinion). "[T]he victims of sex assault are most often juveniles," and "[w]hen convicted sex offenders reenter society, they are much more likely than any other type of offender to be re-arrested for a new rape or sex assault." Id., at 32-33. Connecticut, like every other State, has responded to these facts by enacting a statute designed to protect its communities from sex offenders and to help apprehend repeat sex offenders. Connecticut's "Megan's Law" applies to all persons convicted of criminal offenses against a minor, violent and nonviolent sexual offenses, and felonies committed for a sexual purpose. Covered offenders must register with the Connecticut Department of Public Safety (DPS) upon their release into the community. Each must provide personal information (including his name, address, photograph, and DNA sample); notify DPS of any change in residence; and periodically submit an updated photograph. The registration requirement runs for 10 years in most cases; those convicted of sexually violent offenses must register for life. Conn. Gen. Stat. §§54-251, 54-252, 54-254 (2001). The statute requires DPS to compile the information gathered from registrants and publicize it. In particular, the law requires DPS to post a sex offender registry on an Internet Website and to make the registry available to the public in certain state offices. §§54-257, 54-258. Whether made available in an office or via the Internet, the registry must be accompanied by the following warning: "'Any person who uses information in this registry to injure, harass or commit a criminal act against any person included in the registry or any other person is subject to criminal prosecution.'" §54-258a. Before the District Court enjoined its operation, the State's Website enabled citizens to obtain the name, address, photograph, and description of any registered sex offender by entering a zip code or town name. The following disclaimer appeared on the first page of the Website: "The registry is based on the legislature's decision to facilitate access to publicly-available information about persons convicted of sexual offenses. [DPS] has not considered or assessed the specific risk of reoffense with regard to any individual prior to his or her inclusion within this registry, and has made no determination that any individual included in the registry is currently dangerous. Individuals included within the registry are included solely by virtue of their conviction record and state law. The main purpose of providing this data on the Internet is to make the information more easily available and accessible, not to warn about any specific individual." 271 F.3d, at 44. Petitioners include the state agencies and officials charged with compiling the sex offender registry and posting it on the Internet. Respondent Doe is a convicted sex offender who is subject to Connecticut's Megan's Law. He filed this action pursuant to Rev. Stat. §1979, 42 U.S.C. § 1983 on behalf of himself and similarly situated sex offenders, claiming that the law violates, inter alia, the Due Process Clause of the Fourteenth Amendment. Specifically, respondent alleged that he is not a "dangerous sexual offender," and that the Connecticut law "deprives him of a liberty interest-his reputation combined with the alteration of his status under state law-without notice or a meaningful opportunity to be heard." 271 F.3d, at 45-46. The District Court granted summary judgment for respondent on his due process claim. 132 F. Supp. 2d 57 (Conn. 2001). The court then certified a class of individuals subject to the Connecticut law, and permanently enjoined the law's public disclosure provisions. The Court of Appeals affirmed, 271 F.3d 38 (CA2 2001), holding that the Due Process Clause entitles class members to a hearing "to determine whether or not they are particularly likely to be currently dangerous before being labeled as such by their inclusion in a publicly disseminated registry." Id., at 62. Because Connecticut had not provided such a hearing, the Court of Appeals enjoined petitioners from "disclosing or disseminating to the public, either in printed or electronic form (a) the Registry or (b) Registry information concerning [class members]" and from "identifying [them] as being included in the Registry." Ibid. The Court of Appeals reasoned that the Connecticut law implicated a "liberty interest" because of: (1) the law's stigmatization of respondent by "implying" that he is "currently dangerous," and (2) its imposition of "extensive and onerous" registration obligations on respondent. Id., at 57. From this liberty interest arose an obligation, in the Court of Appeals' view, to give respondent an opportunity to demonstrate that he was not "likely to be currently dangerous." Id., at 62. We granted certiorari, 535 U.S. 1077 (2002). In Paul v. Davis, 424 U.S. 693 (1976), we held that mere injury to reputation, even if defamatory, does not constitute the deprivation of a liberty interest. Petitioners urge us to reverse the Court of Appeals on the ground that, under Paul v. Davis, respondent has failed to establish that petitioners have deprived him of a liberty interest. We find it unnecessary to reach this question, however, because even assuming, arguendo, that respondent has been deprived of a liberty interest, due process does not entitle him to a hearing to establish a fact that is not material under the Connecticut statute. In cases such as Wisconsin v. Constantineau, 400 U.S. 433 (1971), and Goss v. Lopez, 419 U.S. 565 (1975), we held that due process required the government to accord the plaintiff a hearing to prove or disprove a particular fact or set of facts. But in each of these cases, the fact in question was concededly relevant to the inquiry at hand. Here, however, the fact that respondent seeks to prove that he is not currently dangerous, is of no consequence under Connecticut's Megan's Law. As the DPS Website explains, the law's requirements turn on an offender's conviction alone--a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest. 271 F.3d, at 44 ("Individuals included within the registry are included solely by virtue of their conviction record and state law" (emphasis added)). No other fact is relevant to the disclosure of registrants' information. Conn. Gen. Stat. §§54-257, 54-258 (2001). Indeed, the disclaimer on the Website explicitly states that respondent's alleged nondangerousness simply does not matter. 271 F.3d, at 44 ("[DPS] has made no determination that any individual included in the registry is currently dangerous"). In short, even if respondent could prove that he is not likely to be currently dangerous, Connecticut has decided that the registry information of all sex offenders--currently dangerous or not--must be publicly disclosed. Unless respondent can show that that substantive rule of law is defective (by conflicting with a provision of the Constitution), any hearing on current dangerousness is a bootless exercise. It may be that respondent's claim is actually a substantive challenge to Connecticut's statute "recast in 'procedural due process' terms." Reno v. Flores, 507 U.S. 292, 308 (1993). Nonetheless, respondent expressly disavows any reliance on the substantive component of the Fourteenth Amendment's protections, Brief for Respondent 44-45, and maintains, as he did below, that his challenge is strictly a procedural one. But States are not barred by principles of "procedural due process" from drawing such classifications. Michael H. v. Gerald D., 491 U.S. 110, 120 (1989) (plurality opinion) (emphasis in original). See also id., at 132 (Stevens, J., concurring in judgment). Such claims "must ultimately be analyzed" in terms of substantive, not procedural, due process. Id., at 121. Because the question is not properly before us, we express no opinion as to whether Connecticut's Megan's Law violates principles of substantive due process. Plaintiffs who assert a right to a hearing under the Due Process Clause must show that the facts they seek to establish in that hearing are relevant under the statutory scheme. Respondent cannot make that showing here. The judgment of the Court of Appeals is therefore Reversed. Back to Top |
|
The following introduction and concurring opinion are associated with the author commentary on page 65 of the Textbook. Justice Kennedy's
Concurring Opinion in Harmelin I A
Our decisions
recognize that the Cruel and Unusual Punishments Clause encompasses a narrow
proportionality principle. We first interpreted the Eighth Amendment to
prohibit "greatly disproportioned" sentences in Weems v. United States,
217 U.S. 349, 371, 54 L. Ed. 793, 30 S. Ct. 544 (1910), quoting O'Neil
v. Vermont, 144 U.S. 323, 340, 36 L. Ed. 450, 12 S. Ct. 693 (1892)
(Field, J., dissenting). Since Weems, we have applied the principle
in different Eighth Amendment contexts. Its most extensive application has
been in death penalty cases. In Coker v. Georgia, 433 U.S. 584, 592,
53 L. Ed. 2d 982, 97 S. Ct. 2861 (1977), we held that "a sentence of death
is grossly disproportionate and excessive punishment for the crime of rape
and is therefore forbidden by the Eighth Amendment as cruel and unusual
punishment." We applied like reasoning in Enmund v. Florida, 458
U.S. 782, 73 L. Ed. 2d 1140, 102 S. Ct. 3368 (1982), to strike down a capital
sentence imposed for a felony-murder conviction in which the defendant had
not committed the actual murder and lacked intent to kill. Cf. Tison v.
Arizona, 481 U.S. 137, 95 L. Ed. 2d 127, 107 S. Ct. 1676 (1987). B
Though our decisions
recognize a proportionality principle, its precise contours are unclear.
This is so in part because we have applied the rule in few cases and
even then to sentences of different types. Our most recent pronouncement
on the subject in Solem, furthermore, appeared to apply a different
analysis than in Rummel and Davis. Solem twice stated,
however, that its decision was consistent with Rummel and thus did
not overrule it. Solem, supra, at 288, n. 13, 303, n. 32.
Despite these tensions, close analysis of our decisions yields some common
principles that give content to the uses and limits of proportionality
review. Third, marked divergences
both in underlying theories of sentencing and in the length of prescribed
prison terms are the inevitable, often beneficial, result of the federal
structure. See Solem, supra, at 291, n. 17 ("The inherent nature
of our federal system" may result in "a wide range of constitutional
sentences"). "Our federal system recognizes the independent power of
a State to articulate societal norms through criminal law." McCleskey
v. Zant, 499 U.S. 467, 491, 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991).
State sentencing schemes may embody different penological assumptions,
making interstate comparison of sentences a difficult and imperfect enterprise.
See Rummel, 445 U.S. at 281. See also Solem, 463 U.S. at
294-295 (comparison of different terms of years for imprisonment "troubling"
but not "unique to this area"). And even assuming identical philosophies,
differing attitudes and perceptions of local conditions may yield different,
yet rational, conclusions regarding the appropriate length of prison terms
for particular crimes. Thus, the circumstance that a State has the most
severe punishment for a particular crime does not by itself render the
punishment grossly disproportionate. Rummel, 445 U.S. at 281.
"Our Constitution 'is made for people of fundamentally differing views.'
... Absent a constitutionally imposed uniformity inimical to traditional
notions of federalism, some State will always bear the distinction of treating
particular offenders more severely than any other State." Id.,
at 282, quoting Lochner v. New York, 198 U.S. 45, 76, 49 L. Ed.
937, 25 S. Ct. 539 (1905) (Holmes, J., dissenting). See also Graham
v. West Virginia, 224 U.S. 616, 56 L. Ed. 917, 32 S. Ct. 583 (1912). II
With these considerations
stated, it is necessary to examine the challenged aspects of petitioner's
sentence: its severe length and its mandatory operation. A
Petitioner's life
sentence without parole is the second most severe penalty permitted by
law. It is the same sentence received by the petitioner in Solem.
Petitioner's crime, however, was far more grave than the crime at issue in
Solem. B
Petitioner also
attacks his sentence because of its mandatory nature. Petitioner would
have us hold that any severe penalty scheme requires individualized sentencing
so that a judicial official may consider mitigating circumstances. Our
precedents do not support this proposition, and petitioner presents no convincing
reason to fashion an exception or adopt a new rule in the case before us.
The Court demonstrates that our Eighth Amendment capital decisions reject
any requirement of individualized sentencing in noncapital cases.
Ante, at 994-996. The Michigan scheme does possess mechanisms for consideration of individual circumstances. Prosecutorial discretion before sentence and executive or legislative clemency afterwards provide means for the State to avert or correct unjust sentences. Here the prosecutor may have chosen to seek the maximum penalty because petitioner possessed 672.5 grams of undiluted cocaine and several other trappings of a drug trafficker, including marijuana cigarettes, four brass cocaine straws, a cocaine spoon, 12 Percodan tablets, 25 tablets of Phendimetrazine Tartrate, a Motorola beeper, plastic bags containing cocaine, a coded address book, and $ 3,500 in cash. III
A penalty as severe
and unforgiving as the one imposed here would make this a most difficult
and troubling case for any judicial officer. Reasonable minds may differ
about the efficacy of Michigan's sentencing scheme, and it is far from
certain that Michigan's bold experiment will succeed. The accounts of pickpockets
at Tyburn hangings are a reminder of the limits of the law's deterrent
force, but we cannot say the law before us has no chance of success and
is on that account so disproportionate as to be cruel and unusual punishment.
The dangers flowing from drug offenses and the circumstances of the crime
committed here demonstrate that the Michigan penalty scheme does not surpass
constitutional bounds. Michigan may use its criminal law to address the
issue of drug possession in wholesale amounts in the manner that it has
in this sentencing scheme. See New State Ice Co. v. Liebmann,
285 U.S. 262, 311, 76 L. Ed. 747, 52 S. Ct. 371 (1932) (Brandeis, J.,
dissenting). For the foregoing reasons, I conclude that petitioner's sentence
of life imprisonment without parole for his crime of possession of more
than 650 grams of cocaine does not violate the Eighth Amendment |
|
The following discussion corresponds to Webnote E on page 66 of the Textbook. Shortly after the decision in Harmelin, the Michigan Supreme Court reexamined the constitutionality of sentencing persons found to have possessed 650 grams or more of a mixture of drugs containing cocaine to a mandatory sentence of life imprisonment without parole. Notice in the following case that the Michigan Supreme Court adopted much of Justice White's dissenting opinion in Harmelin and rejected the arguments made by Justices Scalia and Kennedy. Four of the seven state Supreme Court justices ruled that the legislatively authorized sentence amounted to cruel or unusual punishment in violation of the Michigan Constitution. http://www.findlaw.com. People
v. Bullock Michael F. Cavanagh, Chief Justice. We address in these consolidated cases the validity of a search conducted without a warrant, and the question whether Michigan's mandatory penalty of life in prison without possibility of parole, for possession of 650 grams or more of any mixture containing cocaine, is "cruel or unusual" under our state constitution. 1. FACTS AND PROCEDURAL HISTORY On February 24, 1988, defendant Hasson traveled by air from Los Angeles to Lansing's Capital City Airport. He had a return ticket to Los Angeles on a flight scheduled to leave less than four hours after his arrival, yet he had checked two large suitcases. Acting on a tip from airline agents relayed through the Los Angeles police, the Michigan State Police met Hasson's flight. Before Hasson claimed his luggage, a police dog alerted officers to the presence of illegal drugs in both suitcases. The police observed Hasson deplane, retrieve his luggage, make a call from a public phone, and walk outside to the public driveway. After about thirty minutes, Hasson flagged down a car driven and owned by defendant Bullock. Bullock's seventeen-year-old grandson was a passenger in the car. Hasson placed his luggage in the trunk and got in the car, which began to pull away. At that point, the Police stopped the car and arrested all three occupants. The police, without attempting to obtain a warrant, then proceeded to search the entire car. They examined the glove compartment, Bullock's purse, which she left in the car, and the luggage Hasson had placed in the trunk. They found traces of cocaine in the glove compartment and Bullock's purse, and over fifteen kilograms of cocaine in Hasson's luggage. This cocaine was admitted as evidence at trial over Hasson's and Bullock's objections, and both were convicted, in separate jury trials, of knowingly possessing 650 grams or more of cocaine.... As mandated by ... statute, ... both defendants were sentenced to life in prison without any possibility of parole. The Court of Appeals... reversed both defendants' convictions. We granted leave to appeal, ... and subsequently agreed to consider whether the mandatory penalty of life in prison without possibility of parole was invalid under either the federal or state constitutions. ...[W]e ordered reargument this term to address the effect of the United States Supreme Court's intervening decisions in ...Harmelin v. Michigan.... II. ANALYSIS C. The Penalty Issue: Bullock and Hasson I. The Applicability of Const. 1963, art, 1, § 16 The United States Supreme Court, in Harmelin v. Michigan, supra, rejected a challenge, brought under the "cruel and unusual punishments" clause of the Eighth Amendment of the United States Constitution, to Michigan's mandatory penalty of life in prison without possibility of parole for possession of 650 grams or more of a mixture containing cocaine. We address here a challenge to that penalty on the basis of Const. 1963, art. 1, § 16, which is worded differently from, and was ratified more than 171 years after, the Eighth Amendment. While Harmelin is binding and authoritative for purposes of applying the United States Constitution, it is only persuasive authority for purposes of this Court's interpretation and application of the Michigan Constitution. This Court alone is the ultimate authority with regard to the meaning and application of Michigan law. ... In the case of a divided United States Supreme Court decision, we may in some cases find more persuasive, and choose to rely upon, the reasoning of the dissenting justices of that Court, and not the majority, for purposes of interpreting our own Michigan Constitution.... 2. Textual Differences First, as we have already noted, the Michigan provision prohibits "cruel or unusual" punishments, while the Eighth Amendment bars only punishments that are both "cruel and unusual." This textual difference does not appear to be accidental or inadvertent. Language providing that, "no cruel or unusual punishments shall be inflicted" was included in Article II of the Northwest Ordinance of 1787. Michigan's first Constitution, adopted in 1835, provided that "cruel and unjust punishments shall not be inflicted." Const. 1835, art. 1, § 18.... The Constitution of 1850 provided that "cruel or unusual punishment shall not be inflicted...." Identical language was adopted as part of the 1908 and 1963 Constitutions. ... This Court, in People v. Lorentzen, ... took specific note of this difference in phraseology and suggested that it might well lead to different results with regard to allegedly disproportionate prison terms. "The prohibition of punishment that is unusual but not necessarily cruel carries an implication that unusually excessive imprisonment is included in that prohibition." ... As this Court noted in [People v.] Collins, a "significant textual difference between parallel provisions of the state and federal constitutions" may constitute a "compelling reason" for a different and broader interpretation of the state provision.... 3.
Historical Factors 4. Longstanding Michigan Precedent Finally, this Court, in interpreting Const. 1963, art. 1, § 16, has long followed an approach more consistent with the reasoning of the Harmelin dissenters than with that of the Harmelin majority. Twenty years ago, in People v. Lorentzen ... we struck down, under both the Eighth Amendment and Const. 1963, art. 1, § 16, a mandatory minimum sentence of twenty years in prison (reducible to approximately ten years by earning "good time") for selling any amount of marijuana.... Our analysis in Lorentzen foreshadowed in a striking manner the three-pronged test later adopted by the United States Supreme Court in Solem v. Helm, 463 U.S. 277... (1983). Thus, Lorentzen noted the severity of the sentence imposed and the fact that it would apply to a marijuana sale by "a first-offender high-school student." ... accord Solem, ... ("[f]irst, we look to the gravity of the offense and the harshness of the penalty"). Lorentzen then compared the penalty to those imposed for numerous other crimes in Michigan ... accord Solem, ... ("[s]econd, it may be helpful to compare the sentences imposed on other criminals in the same jurisdiction"). Lorentzen further compared Michigan's penalty for selling marijuana to the penalties imposed for that offense by other states ... accord Solem, ... ("[t]hird, courts may find it useful to compare the sentences imposed for commission of the same crime in other jurisdictions"). Finally, Lorentzen applied a fourth criterion rooted in Michigan's legal traditions, and reflected in the provision for "indeterminate sentences" of Const. 1963, art. 4, § 45: the goal of rehabilitation.... It is unclear, in the wake of Harmelin, whether Lorentzen's or Solem's analysis survives as a matter of federal constitutional law, and that need not concern us in any event. Lorentzen's analysis, although relying in the alternative on the Eighth Amendment, was firmly and sufficiently rooted in Const. 1963, art. 1, § 16. Indeed, we preceded our proportionality analysis in Lorentzen with a lengthy review of Michigan case law dating back to 1879.... We believe the precedential weight of Lorentzen and its antecedents, as a matter of Michigan law, constitutes a very compelling reason not to reflexively follow the latest turn in the United States Supreme Court's Eighth Amendment analysis. We therefore continue to adhere, on the basis of the Michigan Constitution, to the analysis set forth in Lorentzen and later adopted in Solem. 5. Application Applying the Lorentzen-Solem analysis to these cases, we concluded largely for the reasons stated by Justice White in his dissenting opinion in Harmelin, that the penalty at issue here is so grossly disproportionate as to be "cruel or unusual." "The penalty is imposed for mere possession of cocaine, without any proof of intent to sell or distribute." The penalty would apply to a teenage first offender who acted merely as a courier.... "Indeed on the basis of the information before the Court, it appears that prior to the offense giving rise to this case, defendant Bullock, a forty-eight-year-old grandmother, had never been convicted of any serious crime" and had held a steady job as autoworker for sixteen years.... It is true, as Justice Kennedy noted in Harmelin, that the collateral effects flowing even from mere possession of cocaine are terrible indeed.... But conviction of the crime involved here does not require any proof that the defendant committed, aided, intended, or even contemplated any loss of life or other violent crime, or even any crime against property. As Justice White correctly noted in Harmelin, "[t]o be constitutionally proportionate, punishment must be tailored to a defendant's personal responsibility and moral guilt."... While we emphatically do not minimize the gravity and reprehensibility of defendants' crime, it would be profoundly unfair to impute full personal responsibility and moral guilt to defendants for any and all collateral acts, unintended by them, which might have been later committed by others in connection with the seized cocaine. Persons who independently commit violent and other crimes in connection with illegal drugs can and should be held individually responsible by our criminal justice system. Thus, even under Justice Kennedy's restrictive view of Solem, it is clear that an application of Solem's first prong "leads to an inference of gross disproportionality." ...Harmelin, 501 U.S. at _, ... (Kennedy, J., concurring). Application of the second and third prongs of the Lorentzen-Solem analysis strongly reinforces that inference... As Justice White noted in Harmelin, aside from manufacture, delivery, possession with intent to deliver, and possession of 650 grams or more of a substance containing cocaine or illegal narcotics, only first-degree murder--that is, "willful, deliberate, and premeditated" murder, or murder committed in the course of certain serious felonies--is punishable in Michigan by mandatory life imprisonment without possibility of parole.... The defendants in this case have been punished more severely than they could have been for second-degree murder, rape, mutilation, armed robbery, or other exceptionally grave and violent crimes. Furthermore, as Justice White also noted, no other state in the nation imposes a penalty even remotely as severe as Michigan's for mere possession of 650 grams or more of cocaine.... "Of the remaining 49 states, only Alabama provides for a mandatory sentence of life imprisonment without possibility of parole for a first-time drug offend and then only when a defendant possess ten kilograms or more of cocaine." ... In sum, the only fair conclusion that can be reached regarding the penalty at issue is that it constitutes an unduly disproportionate response to the serious problem posed by drugs in our society. However understandable such a response may be, it is not consistent with our constitution prohibition of "cruel or unusual punishment." The penalty is therefore unconstitutional on its face. The proportionality principle inherent Const. 1963, art. 1, § 16, is not a simple "bright-line" test, and the application that test may, concededly, be analytically difficult and politically unpopular, especially where application of that principle requires us to override a democratically expressed judgment of the Legislature. The fact is, however, the people of Michigan, speaking through their constitution have forbidden the imposition of cruel unusual punishments, and we are duty-bound to devise a principled test by which to enforce that prohibition, and to apply that test to the cases that are brought before us. The very purpose of a constitution is to subject the passing judgments of temporary legislative or political majorities to the deeper, more profound judgment of the people reflected in the constitution, the enforcement of which is entrusted to our judgment." III. CONCLUSION For the reasons stated ... we reverse the judgments of the Court of Appeals and reinstate the convictions of both defendants at bar. For the reasons stated in part II(C), however, we strike down the sentences imposed on both defendants as "cruel or unusual" under Const. 1963, art. 1, § 16. The remaining question is what remedy to afford. In considering this question, we are guided by several factors. First, there are three aspects to the severity of penalty at issue: (1) its length (life); (2) its mandatory character, i.e., the absence individualized consideration for each defendant at the sentencing stage; and (3) the absence of any possibility of individualized parole consideration for each defendant. Second, our holding today is necessarily limited to the precise issue before us; we do not address today the validity of a hypothetical penalty lacking any of these three attributes. Third, the defendants at bar, in challenging this penalty, focused especially on the absence of the possibility of parole. Finally, our decision today necessarily invalidates the sentences of all defendants currently incarcerated under the same penalty, and for committing the same offense, as the defendants at bar.
We conclude that the most appropriate remedy under the circumstances is
to ameliorate the no-parole feature of the penalty. We therefore strike
down, with regard to these defendants and all others who have been sentenced
under the same penalty and for the same offense, that portion of M.C.L.
§ 791.234... denying such defendants the parole consideration otherwise
available upon completion of ten calendar years of the sentence. Thus,
each such defendant shall, upon serving ten calendar years of the sentence,
become subject to the jurisdiction of the parole board and eligible for
parole consideration in accordance with M.C.L. § 791.234.... |
|
Atkins v. Virginia
U.S. Supreme Court No. 00-8452 June 20, 2002 Chief
Justice Rehnquist, with whom Justice Scalia and Justice Thomas join, dissenting.
The question presented by this case is whether a national consensus deprives Virginia of the constitutional power to impose the death penalty on capital murder defendants like petitioner, i.e., those defendants who indisputably are competent to stand trial, aware of the punishment they are about to suffer and why, and whose mental retardation has been found an insufficiently compelling reason to lessen their individual responsibility for the crime. The Court pronounces the punishment cruel and unusual primarily because 18 States recently have passed laws limiting the death eligibility of certain defendants based on mental retardation alone, despite the fact that the laws of 19 other States besides Virginia continue to leave the question of proper punishment to the individuated consideration of sentencing judges or juries familiar with the particular offender and his or her crime. ... I agree with Justice Scalia, ... that the Court's assessment of the current legislative judgment regarding the execution of defendants like petitioner more resembles a post hoc rationalization for the majority's subjectively preferred result rather than any objective effort to ascertain the content of an evolving standard of decency. I write separately, however, to call attention to the defects in the Court's decision to place weight on foreign laws, the views of professional and religious organizations, and opinion polls in reaching its conclusion.... The Court's suggestion that these sources are relevant to the constitutional question finds little support in our precedents and, in my view, is antithetical to considerations of federalism, which instruct that any "permanent prohibition upon all units of democratic government must [be apparent] in the operative acts (laws and the application of laws) that the people have approved." Stanford v. Kentucky, 492 U.S. 361, 377 (1989) (plurality opinion). The Court's uncritical acceptance of the opinion poll data brought to our attention, moreover, warrants additional comment, because we lack sufficient information to conclude that the surveys were conducted in accordance with generally accepted scientific principles or are capable of supporting valid empirical inferences about the issue before us. In making determinations about whether a punishment is "cruel and unusual" under the evolving standards of decency embraced by the Eighth Amendment, we have emphasized that legislation is the "clearest and most reliable objective evidence of contemporary values."... The reason we ascribe primacy to legislative enactments follows from the constitutional role legislatures play in expressing policy of a State. "[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people."...(Stevens, JJ.) (quoting Furman v. Georgia, 408 U.S. 238, 383 (1972) (Burger, C. J., dissenting)). And because the specifications of punishments are "peculiarly questions of legislative policy," Gore v. United States, 357 U.S. 386, 393 (1958), our cases have cautioned against using "'the aegis of the Cruel and Unusual Punishment Clause'" to cut off the normal democratic processes, Gregg, supra, at 176 (quoting Powell v. Texas, 392 U.S. 514, 533 (1968) (plurality opinion)). Our opinions have also recognized that data concerning the actions of sentencing juries, though entitled to less weight than legislative judgments, "is a significant and reliable index of contemporary values," Coker v. Georgia, 433 U.S. 584, 596 (1977) (plurality opinion) (quoting Gregg, supra, at 181), because of the jury's intimate involvement in the case and its function of "maintain[ing] a link between contemporary community values and the penal system," Gregg, supra, at 181 (quoting Witherspoon v. Illinois, 391 U.S. 510, 519, n. 15 (1968)). In Coker, supra, at 596-597, for example, we credited data showing that "at least 9 out of 10" juries in Georgia did not impose the death sentence for rape convictions. And in Enmund v. Florida, 458 U.S. 782, 793-794 (1982), where evidence of the current legislative judgment was not as "compelling" as that in Coker (but more so than that here), we were persuaded by "overwhelming [evidence] that American juries ... repudiated imposition of the death penalty" for a defendant who neither took life nor attempted or intended to take life. In my view, these two sources--the work product of legislatures and sentencing jury determinations--ought to be the sole indicators by which courts ascertain the contemporary American conceptions of decency for purposes of the Eighth Amendment. They are the only objective indicia of contemporary values firmly supported by our precedents. More importantly, however, they can be reconciled with the undeniable precepts that the democratic branches of government and individual sentencing juries are, by design, better suited than courts to evaluating and giving effect to the complex societal and moral considerations that inform the selection of publicly acceptable criminal punishments. In reaching its conclusion today, the Court does not take notice of the fact that neither petitioner nor his amici have adduced any comprehensive statistics that would conclusively prove (or disprove) whether juries routinely consider death a disproportionate punishment for mentally retarded offenders like petitioner. Instead, it adverts to the fact that other countries have disapproved imposition of the death penalty for crimes committed by mentally retarded offenders, see ante, at 11-12, n. 21 (citing the Brief for The European Union as Amicus Curiae in McCarver v. North Carolina, O. T. 2001, No. 00-8727, p. 2). I fail to see, however, how the views of other countries regarding the punishment of their citizens provide any support for the Court's ultimate determination. While it is true that some of our prior opinions have looked to "the climate of international opinion," Coker, supra, at 596, n. 10, to reinforce a conclusion regarding evolving standards of decency, see Thompson v. Oklahoma, 487 U.S. 815, 830 (1988) (plurality opinion); Enmund, supra, at 796-797, n. 22 (1982); Trop v. Dulles, 356 U.S. 86, 102-103 (1958) (plurality opinion); we have since explicitly rejected the idea that the sentencing practices of other countries could "serve to establish the first Eighth Amendment prerequisite, that [a] practice is accepted among our people." Stanford, supra, at 369, n. 1 (emphasizing that "American conceptions of decency … are dispositive") (emphasis in original). Stanford's reasoning makes perfectly good sense, and the Court offers no basis to question it. For if it is evidence of a national consensus for which we are looking, then the viewpoints of other countries simply are not relevant. And nothing in Thompson, Enmund, Coker, or Trop suggests otherwise. Thompson, Enmund, and Coker rely only on the bare citation of international laws by the Trop plurality as authority to deem other countries' sentencing choices germane. But the Trop plurality--representing the view of only a minority of the Court--offered no explanation for its own citation, and there is no reason to resurrect this view given our sound rejection of the argument in Stanford. To further buttress its appraisal of contemporary societal values, the Court marshals public opinion poll results and evidence that several professional organizations and religious groups have adopted official positions opposing the imposition of the death penalty upon mentally retarded offenders. See ante, at 11-12, n. 21 (citing Brief for American Psychological Association et al. as Amici Curiae; Brief for American Association on Mental Retardation et al. as Amici Curiae; noting that "representatives of widely diverse religious communities ... reflecting Christian, Jewish, Muslim, and Buddhist traditions … 'share a conviction that the execution of persons with mental retardation cannot be morally justified'"; and stating that "polling data shows a widespread consensus among Americans … that executing the mentally retarded is wrong"). In my view, none should be accorded any weight on the Eight Amendment scale when the elected representatives of a State's populace have not deemed them persuasive enough to prompt legislative action. In Penry, 492 U.S., at 334-335, we were cited similar data and declined to take them into consideration where the "public sentiment expressed in [them]" had yet to find expression in state law. See also Stanford, 492 U.S., at 377 (plurality opinion) (refusing "the invitation to rest constitutional law upon such uncertain foundations" as "public opinion polls, the views of interest groups, and the positions adopted by various professional organizations"). For the Court to rely on such data today serves only to illustrate its willingness to proscribe by judicial fiat--at the behest of private organizations speaking only for themselves--a punishment about which no across-the-board consensus has developed through the workings of normal democratic processes in the laboratories of the States. Even if I were to accept the legitimacy of the Court's decision to reach beyond the product of legislatures and practices of sentencing juries to discern a national standard of decency, I would take issue with the blind-faith credence it accords the opinion polls brought to our attention. An extensive body of social science literature describes how methodological and other errors can affect the reliability and validity of estimates about the opinions and attitudes of a population derived from various sampling techniques. Everything from variations in the survey methodology, such as the choice of the target population, the sampling design used, the questions asked, and the statistical analyses used to interpret the data can skew the results. See, e.g., R. Groves, Survey Errors and Survey Costs (1989); 1 C. Turner & E. Martin, Surveying Subjective Phenomena (1984). The Federal Judicial Center's Reference Manual on Scientific Evidence 221-271 (1994) and its Manual for Complex Litigation §21.493 pp. 101-103 (3d ed. 1995), offer helpful suggestions to judges called upon to assess the weight and admissibility of survey evidence on a factual issue before a court. Looking at the polling data (reproduced in the Appendix to this opinion) in light of these factors, one cannot help but observe how unlikely it is that the data could support a valid inference about the question presented by this case. For example, the questions reported to have been asked in the various polls do not appear designed to gauge whether the respondents might find the death penalty an acceptable punishment for mentally retarded offenders in rare cases. Most are categorical (e.g., "Do you think that persons convicted of murder who are mentally retarded should or should not receive the death penalty?"), and, as such, would not elicit whether the respondent might agree or disagree that all mentally retarded people by definition can never act with the level of culpability associated with the death penalty, regardless of the severity of their impairment or the individual circumstances of their crime. Second, none of the 27 polls cited disclose the targeted survey population or the sampling techniques used by those who conducted the research. Thus, even if one accepts that the survey instruments were adequately designed to address a relevant question, it is impossible to know whether the sample was representative enough or the methodology sufficiently sound to tell us anything about the opinions of the citizens of a particular State or the American public at large. Finally, the information provided to us does not indicate why a particular survey was conducted or, in a few cases, by whom, factors which also can bear on the objectivity of the results. In order to be credited here, such surveys should be offered as evidence at trial, where their sponsors can be examined and cross-examined about these matters. *
* *
There are strong reasons for limiting our inquiry into what constitutes an evolving standard of decency under the Eighth Amendment to the laws passed by legislatures and the practices of sentencing juries in America. Here, the Court goes beyond these well-established objective indicators of contemporary values. It finds "further support to [its] conclusion" that a national consensus has developed against imposing the death penalty on all mentally retarded defendants in international opinion, the views of professional and religious organizations, and opinion polls not demonstrated to be reliable. Ante, at 11-12, n. 21. Believing this view to be seriously mistaken, I dissent.... Justice Scalia, with whom the Chief Justice and Justice Thomas join, dissenting. Today's decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it, like all of that jurisprudence, find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes regarding the conditions that render an otherwise just death penalty inappropriate. Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.
I
I begin with a brief
restatement of facts that are abridged by the Court but important to understanding
this case. After spending the day drinking alcohol and smoking marijuana,
petitioner Daryl Renard Atkins and a partner in crime drove to a convenience
store, intending to rob a customer. Their victim was Eric Nesbitt, an
airman from Langley Air Force Base, whom they abducted, drove to a nearby
automated teller machine, and forced to withdraw $200. They then drove
him to a deserted area, ignoring his pleas to leave him unharmed. According
to the co-conspirator, whose testimony the jury evidently credited, Atkins
ordered Nesbitt out of the vehicle and, after he had taken only a few steps,
shot him one, two, three, four, five, six, seven, eight times in the thorax,
chest, abdomen, arms, and legs.The jury convicted Atkins of capital murder. At resentencing (the Virginia Supreme Court affirmed his conviction but remanded for resentencing because the trial court had used an improper verdict form, 257 Va. 160, 179, 510 S. E. 2d 445, 457 (1999)), the jury heard extensive evidence of petitioner's alleged mental retardation. A psychologist testified that petitioner was mildly mentally retarded with an IQ of 59, that he was a "slow learne[r]," App. 444, who showed a "lack of success in pretty much every domain of his life," id., at 442, and that he had an "impaired" capacity to appreciate the criminality of his conduct and to conform his conduct to the law, id., at 453. Petitioner's family members offered additional evidence in support of his mental retardation claim (e.g., that petitioner is a "follower," id., at 421). The State contested the evidence of retardation and presented testimony of a psychologist who found "absolutely no evidence other than the IQ score … indicating that [petitioner] was in the least bit mentally retarded" and concluded that petitioner was "of average intelligence, at least." Id., at 476. The jury also heard testimony about petitioner's 16 prior felony convictions for robbery, attempted robbery, abduction, use of a firearm, and maiming. Id., at 491-522. The victims of these offenses provided graphic depictions of petitioner's violent tendencies: He hit one over the head with a beer bottle, id., at 406; he slapped a gun across another victim's face, clubbed her in the head with it, knocked her to the ground, and then helped her up, only to shoot her in the stomach, id., at 411-413. The jury sentenced petitioner to death. The Supreme Court of Virginia affirmed petitioner's sentence. 260 Va. 375, 534 S. E. 2d 312 (2000).
II
As the foregoing
history demonstrates, petitioner's mental retardation was a central issue
at sentencing. The jury concluded, however, that his alleged retardation
was not a compelling reason to exempt him from the death penalty in
light of the brutality of his crime and his long demonstrated propensity
for violence. "In upsetting this particularized judgment on the basis
of a constitutional absolute," the Court concludes that no one who is
even slightly mentally retarded can have sufficient "moral responsibility
to be subjected to capital punishment for any crime. As a sociological
and moral conclusion that is implausible; and it is doubly implausible
as an interpretation of the United States Constitution." Thompson
v. Oklahoma, 487 U.S. 815, 863-864 (1988) (Scalia, J., dissenting).Under our Eighth Amendment jurisprudence, a punishment is "cruel and unusual" if it falls within one of two categories: "those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted," Ford v. Wainwright, 477 U.S. 399, 405 (1986), and modes of punishment that are inconsistent with modern "standards of decency," as evinced by objective indicia, the most important of which is "legislation enacted by the country's legislatures," Penry v. Lynaugh, 492 U.S. 302, 330-331 (1989). The Court makes no pretense that execution of the mildly mentally retarded would have been considered "cruel and unusual" in 1791. Only the severely or profoundly mentally retarded, commonly known as "idiots," enjoyed any special status under the law at that time. They, like lunatics, suffered a "deficiency in will" rendering them unable to tell right from wrong. 4 W. Blackstone, Commentaries on the Laws of England 24 (1769) (hereinafter Blackstone); see also Penry, 492 U.S., at 331-332 ("[T]he term 'idiot' was generally used to describe persons who had a total lack of reason or understanding, or an inability to distinguish between good and evil"); id., at 333 (citing sources indicating that idiots generally had an IQ of 25 or below, which would place them within the "profound" or "severe" range of mental retardation under modern standards); 2 A. Fitz-Herbert, Natura Brevium 233B (9th ed. 1794) (originally published 1534) (An idiot is "such a person who cannot account or number twenty pence, nor can tell who was his father or mother, nor how old he is, etc., so as it may appear that he hath no understanding of reason what shall be for his profit, or what for his loss"). Due to their incompetence, idiots were "excuse[d] from the guilt, and of course from the punishment, of any criminal action committed under such deprivation of the senses." 4 Blackstone 25; see also Penry, supra, at 331. Instead, they were often committed to civil confinement or made wards of the State, thereby preventing them from "go[ing] loose, to the terror of the king's subjects." 4 Blackstone 25; see also S. Brakel, J. Parry, & B. Weiner, The Mentally Disabled and the Law 12-14 (3d ed. 1985); 1 Blackstone 292-296; 1 M. Hale, Pleas of the Crown 33 (1st Am. ed. 1847). Mentally retarded offenders with less severe impairments--those who were not "idiots"--suffered criminal prosecution and punishment, including capital punishment. See, e.g., I. Ray, Medical Jurisprudence of Insanity 65, 87-92 (W. Overholser ed. 1962) (recounting the 1834 trial and execution in Concord, New Hampshire, of an apparent "imbecile"--imbecility being a less severe form of retardation which "differs from idiocy in the circumstance that while in [the idiot] there is an utter destitution of every thing like reason, [imbeciles] possess some intellectual capacity, though infinitely less than is possessed by the great mass of mankind"); A. Highmore, Law of Idiocy and Lunacy 200 (1807) ("The great difficulty in all these cases, is to determine where a person shall be said to be so far deprived of his sense and memory as not to have any of his actions imputed to him: or where notwithstanding some defects of this kind he still appears to have so much reason and understanding as will make him accountable for his actions …"). The Court is left to argue, therefore, that execution of the mildly retarded is inconsistent with the "evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion) (Warren, C. J.). Before today, our opinions consistently emphasized that Eighth Amendment judgments regarding the existence of social "standards" "should be informed by objective factors to the maximum possible extent" and "should not be, or appear to be, merely the subjective views of individual Justices." Coker v. Georgia, 433 U.S. 584, 592 (1977) (plurality opinion); see also Stanford, supra, at 369; McCleskey v. Kemp, 481 U.S. 279, 300 (1987); Enmund v. Florida, 458 U.S. 782, 788 (1982). "First" among these objective factors are the "statutes passed by society's elected representatives," Stanford v. Kentucky, 492 U.S. 361, 370 (1989); because it "will rarely if ever be the case that the Members of this Court will have a better sense of the evolution in views of the American people than do their elected representatives," Thompson, supra, at 865 (Scalia, J., dissenting). The Court pays lip service to these precedents as it miraculously extracts a "national consensus" forbidding execution of the mentally retarded, ante, at 12, from the fact that 18 States--less than half (47%) of the 38 States that permit capital punishment (for whom the issue exists)--have very recently enacted legislation barring execution of the mentally retarded. Even that 47% figure is a distorted one. If one is to say, as the Court does today, that all executions of the mentally retarded are so morally repugnant as to violate our national "standards of decency," surely the "consensus" it points to must be one that has set its righteous face against all such executions. Not 18 States, but only seven--18% of death penalty jurisdictions--have legislation of that scope. Eleven of those that the Court counts enacted statutes prohibiting execution of mentally retarded defendants convicted after, or convicted of crimes committed after, the effective date of the legislation;1 those already on death row, or consigned there before the statute's effective date, or even (in those States using the date of the crime as the criterion of retroactivity) tried in the future for murders committed many years ago, could be put to death. That is not a statement of absolute moral repugnance, but one of current preference between two tolerable approaches. Two of these States permit execution of the mentally retarded in other situations as well: Kansas apparently permits execution of all except the severely mentally retarded; 2 New York permits execution of the mentally retarded who commit murder in a correctional facility. N. Y. Crim. Proc. Law §400.27.12(d) (McKinney 2001); N. Y. Penal Law §125.27 (McKinney 202). But let us accept, for the sake of argument, the Court's faulty count. That bare number of States alone--18--should be enough to convince any reasonable person that no "national consensus" exists. How is it possible that agreement among 47% of the death penalty jurisdictions amounts to "consensus"? Our prior cases have generally required a much higher degree of agreement before finding a punishment cruel and unusual on "evolving standards" grounds. In Coker, supra, at 595-596, we proscribed the death penalty for rape of an adult woman after finding that only one jurisdiction, Georgia, authorized such a punishment. In Enmund, supra, at 789, we invalidated the death penalty for mere participation in a robbery in which an accomplice took a life, a punishment not permitted in 28 of the death penalty States (78%). In Ford, 477 U.S., at 408, we supported the common-law prohibition of execution of the insane with the observation that "[t]his ancestral legacy has not outlived its time," since not a single State authorizes such punishment. In Solem v. Helm, 463 U.S. 277, 300 (1983), we invalidated a life sentence without parole under a recidivist statute by which the criminal "was treated more severely than he would have been in any other State." What the Court calls evidence of "consensus" in the present case (a fudged 47%) more closely resembles evidence that we found inadequate to establish consensus in earlier cases. Tison v. Arizona, 481 U.S. 137, 154, 158 (1987), upheld a state law authorizing capital punishment for major participation in a felony with reckless indifference to life where only 11 of the 37 death penalty States (30%) prohibited such punishment. Stanford, supra, at 372, upheld a state law permitting execution of defendants who committed a capital crime at age 16 where only 15 of the 36 death penalty States (42%) prohibited death for such offenders. Moreover, a major factor that the Court entirely disregards is that the legislation of all 18 States it relies on is still in its infancy. The oldest of the statutes is only 14 years old; five were enacted last year; over half were enacted within the past eight years. Few, if any, of the States have had sufficient experience with these laws to know whether they are sensible in the long term. It is "myopic to base sweeping constitutional principles upon the narrow experience of [a few] years." Coker, 433 U.S., at 614 (Burger, C. J., dissenting); see also Thompson, 487 U.S., at 854-855 (O'Connor, J., concurring in judgment). The Court attempts to bolster its embarrassingly feeble evidence of "consensus" with the following: "It is not so much the number of these States that is significant, but the consistency of the direction of change." Ante, at 10 (emphasis added). But in what other direction could we possibly see change? Given that 14 years ago all the death penalty statutes included the mentally retarded, any change (except precipitate undoing of what had just been done) was bound to be in the one direction the Court finds significant enough to overcome the lack of real consensus. That is to say, to be accurate the Court's "consistency-of-the-direction-of-change" point should be recast into the following unimpressive observation: "No State has yet undone its exemption of the mentally retarded, one for as long as 14 whole years." In any event, reliance upon "trends," even those of much longer duration than a mere 14 years, is a perilous basis for constitutional adjudication, as Justice O'Connor eloquently explained in Thompson: "In 1846, Michigan became the first State to abolish the death penalty.... In succeeding decades, other American States continued the trend towards abolition.... Later, and particularly after World War II, there ensued a steady and dramatic decline in executions.... In the 1950s and 1960s, more States abolished or radically restricted capital punishment, and executions ceased completely for several years beginning in 1968.... Her words demonstrate, of course, not merely the peril of riding a trend, but also the peril of discerning a consensus where there is none. The Court's thrashing about for evidence of "consensus" includes reliance upon the margins by which state legislatures have enacted bans on execution of the retarded. Ante, at 11. Presumably, in applying our Eighth Amendment "evolving-standards-of-decency" jurisprudence, we will henceforth weigh not only how many States have agreed, but how many States have agreed by how much. Of course if the percentage of legislators voting for the bill is significant, surely the number of people represented by the legislators voting for the bill is also significant: the fact that 49% of the legislators in a State with a population of 60 million voted against the bill should be more impressive than the fact that 90% of the legislators in a state with a population of 2 million voted for it. (By the way, the population of the death penalty States that exclude the mentally retarded is only 44% of the population of all death penalty States. U.S. Census Bureau, Statistical Abstract of the United States 21 (121st ed. 2001).) This is quite absurd. What we have looked for in the past to "evolve" the Eighth Amendment is a consensus of the same sort as the consensus that adopted the Eighth Amendment: a consensus of the sovereign States that form the Union, not a nose count of Americans for and against. Even less compelling (if possible) is the Court's argument, ante, at 11, that evidence of "national consensus" is to be found in the infrequency with which retarded persons are executed in States that do not bar their execution. To begin with, what the Court takes as true is in fact quite doubtful. It is not at all clear that execution of the mentally retarded is "uncommon," ibid., as even the sources cited by the Court suggest, see ante, at 11, n. 20 (citing D. Keyes, W. Edwards, & R. Perske, "People with Mental Retardation are Dying Legally," 35 Mental Retardation (Feb. 1997) (updated by Death Penalty Information Center; available at http://www.advocacyone.org/deathpenalty.html) (June 12, 2002) (showing that 12 States executed 35 allegedly mentally retarded offenders during the period 1984-2000)). See also Bonner & Rimer, Executing the Mentally Retarded Even as Laws Begin to Shift, N. Y. Times, Aug. 7, 2000 p. A1 (reporting that 10% of death row inmates are retarded). If, however, execution of the mentally retarded is "uncommon"; and if it is not a sufficient explanation of this that the retarded comprise a tiny fraction of society (1% to 3%), Brief for American Psychological Association et al. as Amici Curiae; then surely the explanation is that mental retardation is a constitutionally mandated mitigating factor at sentencing, Penry, 492 U.S., at 328. For that reason, even if there were uniform national sentiment in favor of executing the retarded in appropriate cases, one would still expect execution of the mentally retarded to be "uncommon." To adapt to the present case what the Court itself said in Stanford, 492 U.S., at 374: "[I]t is not only possible, but overwhelmingly probable, that the very considerations which induce [today's majority] to believe that death should never be imposed on [mentally retarded] offenders...cause prosecutors and juries to believe that it should rarely be imposed." But the Prize for the Court's Most Feeble Effort to fabricate "national consensus" must go to its appeal (deservedly relegated to a footnote) to the views of assorted professional and religious organizations, members of the so-called "world community," and respondents to opinion polls. Ante, at 11-12, n. 21. I agree with the Chief Justice, ante, at 4-8 (dissenting opinion), that the views of professional and religious organizations and the results of opinion polls are irrelevant. 6 Equally irrelevant are the practices of the "world community," whose notions of justice are (thankfully) not always those of our people. "We must never forget that it is a Constitution for the United States of America that we are expounding.... [W]here there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution." Thompson, 487 U.S., at 868-869, n. 4 (Scalia, J., dissenting).
III
Beyond the empty
talk of a "national consensus," the Court gives us a brief glimpse of
what really underlies today's decision: pretension to a power confined neither
by the moral sentiments originally enshrined in the Eighth Amendment (its
original meaning) nor even by the current moral sentiments of the American
people. "[T]he Constitution," the Court says, "contemplates that in
the end our own judgment will be brought to bear on the question of the
acceptability of the death penalty under the Eighth Amendment."
Ante, at 7 (quoting Coker, 433 U.S., at 597) (emphasis
added). (The unexpressed reason for this unexpressed "contemplation" of
the Constitution is presumably that really good lawyers have moral sentiments
superior to those of the common herd, whether in 1791 or today.) The arrogance
of this assumption of power takes one's breath away. And it explains, of
course, why the Court can be so cavalier about the evidence of consensus.
It is just a game, after all. "[I]n the end," it is the feelings and intuition
of a majority of the Justices that count--"the perceptions of decency,
or of penology, or of mercy, entertained ... by a majority of the small
and unrepresentative segment of our society that sits on this Court." Thompson,
supra, at 873 (Scalia, J., dissenting).The genuinely operative portion of the opinion, then, is the Court's statement of the reasons why it agrees with the contrived consensus it has found, that the "diminished capacities" of the mentally retarded render the death penalty excessive. Ante, at 13-17. The Court's analysis rests on two fundamental assumptions: (1) that the Eighth Amendment prohibits excessive punishments, and (2) that sentencing juries or judges are unable to account properly for the "diminished capacities" of the retarded. The first assumption is wrong, as I explained at length in Harmelin v. Michigan, 501 U.S. 957, 966-990 (1991) (opinion of Scalia, J.). The Eighth Amendment is addressed to always-and-everywhere "cruel" punishments, such as the rack and the thumbscrew. But where the punishment is in itself permissible, "[t]he Eighth Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling the States from giving effect to altered beliefs and responding to changed social conditions." Id., at 990. The second assumption--inability of judges or juries to take proper account of mental retardation--is not only unsubstantiated, but contradicts the immemorial belief, here and in England, that they play an indispensable role in such matters: "[I]t is very difficult to define the indivisible line that divides perfect and partial insanity; but it must rest upon circumstances duly to be weighed and considered both by the judge and jury, lest on the one side there be a kind of inhumanity towards the defects of human nature, or on the other side too great an indulgence given to great crimes...." Hale, Pleas of the Crown, at 30. Proceeding from these faulty assumptions, the Court gives two reasons why the death penalty is an excessive punishment for all mentally retarded offenders. First, the "diminished capacities" of the mentally retarded raise a "serious question" whether their execution contributes to the "social purposes" of the death penalty, viz., retribution and deterrence. Ante, at 13-14. (The Court conveniently ignores a third "social purpose" of the death penalty--"incapacitation of dangerous criminals and the consequent prevention of crimes that they may otherwise commit in the future," Gregg v. Georgia, 428 U.S. 153, 183, n. 28 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). (But never mind; its discussion of even the other two does not bear analysis.) Retribution is not advanced, the argument goes, because the mentally retarded are no more culpable than the average murderer, whom we have already held lacks sufficient culpability to warrant the death penalty, see Godfrey v. Georgia, 446 U.S. 420, 433 (1980) (plurality opinion). Ante, at 14-15. Who says so? Is there an established correlation between mental acuity and the ability to conform one's conduct to the law in such a rudimentary matter as murder? Are the mentally retarded really more disposed (and hence more likely) to commit willfully cruel and serious crime than others? In my experience, the opposite is true: being childlike generally suggests innocence rather than brutality. Assuming, however, that there is a direct connection between diminished intelligence and the inability to refrain from murder, what scientific analysis can possibly show that a mildly retarded individual who commits an exquisite torture-killing is "no more culpable" than the "average" murderer in a holdup-gone-wrong or a domestic dispute? Or a moderately retarded individual who commits a series of 20 exquisite torture-killings? Surely culpability, and deservedness of the most severe retribution, depends not merely (if at all) upon the mental capacity of the criminal (above the level where he is able to distinguish right from wrong) but also upon the depravity of the crime--which is precisely why this sort of question has traditionally been thought answerable not by a categorical rule of the sort the Court today imposes upon all trials, but rather by the sentencer's weighing of the circumstances (both degree of retardation and depravity of crime) in the particular case. The fact that juries continue to sentence mentally retarded offenders to death for extreme crimes shows that society's moral outrage sometimes demands execution of retarded offenders. By what principle of law, science, or logic can the Court pronounce that this is wrong? There is none. Once the Court admits (as it does) that mental retardation does not render the offender morally blameless, ante, at 13-14, there is no basis for saying that the death penalty is never appropriate retribution, no matter how heinous the crime. As long as a mentally retarded offender knows "the difference between right and wrong," ante, at 13, only the sentencer can assess whether his retardation reduces his culpability enough to exempt him from the death penalty for the particular murder in question. As for the other social purpose of the death penalty that the Court discusses, deterrence: That is not advanced, the Court tells us, because the mentally retarded are "less likely" than their non-retarded counterparts to "process the information of the possibility of execution as a penalty and ... control their conduct based upon that information." Ante, at 15. Of course this leads to the same conclusion discussed earlier--that the mentally retarded (because they are less deterred) are more likely to kill--which neither I nor the society-at-large believes. In any event, even the Court does not say that all mentally retarded individuals cannot "process the information of the possibility of execution as a penalty and ... control their conduct based upon that information"; it merely asserts that they are "less likely" to be able to do so. But surely the deterrent effect of a penalty is adequately vindicated if it successfully deters many, but not all, of the target class. Virginia's death penalty, for example, does not fail of its deterrent effect simply because some criminals are unaware that Virginia has the death penalty. In other words, the supposed fact that some retarded criminals cannot fully appreciate the death penalty has nothing to do with the deterrence rationale, but is simply an echo of the arguments denying a retribution rationale, discussed and rejected above. I am not sure that a murderer is somehow less blameworthy if (though he knew his act was wrong) he did not fully appreciate that he could die for it; but if so, we should treat a mentally retarded murderer the way we treat an offender who may be "less likely" to respond to the death penalty because he was abused as a child. We do not hold him immune from capital punishment, but require his background to be considered by the sentencer as a mitigating factor. Eddings v. Oklahoma, 455 U.S. 104, 113-117 (1982). The Court throws one last factor into its grab bag of reasons why execution of the retarded is "excessive" in all cases: Mentally retarded offenders "face a special risk of wrongful execution" because they are less able "to make a persuasive showing of mitigation," "to give meaningful assistance to their counsel," and to be effective witnesses. Ante, at 16. "Special risk" is pretty flabby language (even flabbier than "less likely")--and I suppose a similar "special risk" could be said to exist for just plain stupid people, inarticulate people, and even ugly people. If this unsupported claim has any substance to it (which I doubt) it might support a due process claim in all criminal prosecutions of the mentally retarded; but it is hard to see how it has anything to do with an Eighth Amendment claim that execution of the mentally retarded is cruel and unusual. We have never before held it to be cruel and unusual punishment to impose a sentence in violation of some other constitutional imperative. *
* *
Today's opinion adds one more to the long list of substantive and procedural requirements impeding imposition of the death penalty imposed under this Court's assumed power to invent a death-is-different jurisprudence. None of those requirements existed when the Eighth Amendment was adopted, and some of them were not even supported by current moral consensus. They include prohibition of the death penalty for "ordinary" murder, Godfrey, 446 U.S., at 433, for rape of an adult woman, Coker, 433 U.S., at 592, and for felony murder absent a showing that the defendant possessed a sufficiently culpable state of mind, Enmund, 458 U.S., at 801; prohibition of the death penalty for any person under the age of 16 at the time of the crime, Thompson, 487 U.S., at 838 (plurality opinion); prohibition of the death penalty as the mandatory punishment for any crime, Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion), Sumner v. Shuman, 483 U.S. 66, 77-78 (1987); a requirement that the sentencer not be given unguided discretion, Furman v. Georgia, 408 U.S. 238 (1972) (per curiam), a requirement that the sentencer be empowered to take into account all mitigating circumstances, Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion), Eddings v. Oklahoma, supra, at 110; and a requirement that the accused receive a judicial evaluation of his claim of insanity before the sentence can be executed, Ford, 477 U.S., at 410-411 (plurality opinion). There is something to be said for popular abolition of the death penalty; there is nothing to be said for its incremental abolition by this Court. This newest invention promises to be more effective than any of the others in turning the process of capital trial into a game. One need only read the definitions of mental retardation adopted by the American Association of Mental Retardation and the American Psychiatric Association (set forth in the Court's opinion, ante, at 2-3, n. 3) to realize that the symptoms of this condition can readily be feigned. And whereas the capital defendant who feigns insanity risks commitment to a mental institution until he can be cured (and then tried and executed), Jones v. United States, 463 U.S. 354, 370, and n. 20 (1983), the capital defendant who feigns mental retardation risks nothing at all. The mere pendency of the present case has brought us petitions by death row inmates claiming for the first time, after multiple habeas petitions, that they are retarded. See, e.g., Moore v. Texas, 535 U.S.--(2002) (Scalia, J., dissenting from grant of applications for stay of execution). Perhaps these practical difficulties will not be experienced by the minority of capital-punishment States that have very recently changed mental retardation from a mitigating factor (to be accepted or rejected by the sentencer) to an absolute immunity. Time will tell--and the brief time those States have had the new disposition in place (an average of 6.8 years) is surely not enough. But if the practical difficulties do not appear, and if the other States share the Court's perceived moral consensus that all mental retardation renders the death penalty inappropriate for all crimes, then that majority will presumably follow suit. But there is no justification for this Court's pushing them into the experiment--and turning the experiment into a permanent practice--on constitutional pretext. Nothing has changed the accuracy of Matthew Hale's endorsement of the common law's traditional method for taking account of guilt-reducing factors, written over three centuries ago: "[Determination of a person's incapacity] is a matter of great difficulty, partly from the easiness of counterfeiting this disability … and partly from the variety of the degrees of this infirmity, whereof some are sufficient, and some are insufficient to excuse persons in capital offenses." … |
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